Posner and Realism

Orin Kerr recently posted a link to William O. Douglas' "This I Believe" essay from the early 1950s.  In the process, Orin also linked to Judge Posner's memorable 2003 essay in the New Republic that reviewed Wild Bill,  Bruce Allen Murphy's biography of Douglas.  This has sparked a new round of comments on Posner's remarkably (and for some, refreshingly!) blunt observations.

Brian Leiter suggests that "[i]t would be salutary, indeed, if Judge Posner's observations were read aloud at the start of every confirmation hearing for a Supreme Court Justice; perhaps, then, we might have a grown-up discussion of the relevant merits and demerits of the nominees."  Brian excerpts one of the essay's key passages:

The supreme court is a political court. The discretion that the justices exercise can fairly be described as legislative in character, but the conditions under which this "legislature" operates are different from those of Congress. Lacking electoral legitimacy, yet wielding Zeus's thunderbolt in the form of the power to invalidate actions of the other branches of government as unconstitutional, the justices, to be effective, have to accept certain limitations on their legislative discretion. They are confined, in Holmes's words, from molar to molecular motions. And even at the molecular level the justices have to be able to offer reasoned justifications for departing from their previous decisions, and to accord a decent respect to public opinion, and to allow room for social experimentation, and to formulate doctrines that will provide guidance to lower courts, and to comply with the expectations of the legal profession concerning the judicial craft. They have to be seen to be doing law rather than doing politics.

Yeh, most students cover this in Con Law.   I suspect the attitudinalists might want to read the whole essay, which is here. 

Comments

[David Lundeen]

Leiter also posted this anecdote from Judge Posner's confirmation hearing, which is very telling on the "have to be seen to be doing law rather than doing politics" point--politicians are sometimes willing to throw intellectually honest descriptions down the memory whole to help maintain the facade.

http://leiterreports.typepad.com/blog/2003/11/more_on_legal_r.html